Title VII: Does it Prohibit Sexual Orientation Discrimination?

On March 10, 2017, in Evans v. Georgia Regional Hospital, the 11th Circuit Court of Appeals held that sexual orientation discrimination is not actionable under Title VII. The 11th Circuit joined nine other federal circuit courts to deny such an action. While the circuit court held Title VII sexual orientation discrimination claims cannot be maintained, it reiterated that gender non-conformity and same-sex discrimination claims are actionable.

The plaintiff in Evans was a security guard at Georgia Regional Hospital. The plaintiff was a lesbian, but “did not broadcast her sexuality,” though it was “evident that she identified with the male gender, because of how she presented herself.” In her complaint, she alleged that she was denied equal pay or work, harassed, physically assaulted and was discriminated on the basis of her sex and targeted for termination for failing to carry herself in a traditionally womanly manner. The magistrate judge dismissed both of the plaintiff’s claims, holding that Title VII “was not intended to cover discrimination against homosexuals” and the gender non-conformity claim was “just another way to claim discrimination based on sexual orientation.” The plaintiff appealed to the 11th Circuit.

In a 2-1 decision, the 11th Circuit panel first addressed the plaintiff’s gender non-conformity claim and held that that claim should not have been dismissed. The panel found that gender-non conformity was not another way to claim discrimination based on sexual orientation, but was a separate claim that was actionable under Title VII. Discriminating against a worker based upon her failure to carry herself in a traditionally womanly manner was discrimination based on sex and a violation of Title VII. The panel remanded the case on this issue and permitted the plaintiff to amend her complaint to plead facts sufficient to suggest that she was discriminated based on her non-conformity of gender stereotypes.

The 11th Circuit panel next addressed the sexual orientation discrimination claim. The panel did not adopt a bright light rule against sexual orientation discrimination under Title VII, but rather relied on the circuit’s 1979 case Blum v. Gulf Oil Corp., which held that discrimination on the basis of homosexuality is not prohibited by Title VII. The panel reasoned that it was “bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.” Noting that nearly all other federal circuit courts have determined that sexual orientation is not actionable under Title VII, the panel affirmed the magistrate judge’s finding that the sexual orientation claim could not be maintained.

While the vast majority of circuit courts have held that sexual orientation discrimination claims are not actionable under Title VII, many state laws prohibit sexual orientation discrimination. Similarly, the EEOC has interpreted Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation and will enforce these protections regardless of any contrary state or local laws. As discrimination actions continue to evolve, it is important to have legal counsel who understands your rights and obligations under Title VII. The attorneys at Joseph, Hollander & Craft LLC are able and willing to help.